THANK YOU, YOUR HONOR. GOOD MORNING AND IF THE COURT PLEASE, WE ARE HERE, TODAY, IN A CASE IN WHICH THE JURY RECOMMENDATION FOR DEATH WAS 7-TO-5, AND IN WHICH THERE WERE THREE ISSUES, AT THE PENALTY PHASE OF MR. SHERE'S TRIAL, THAT CONSTITUTED SUBSTANTIAL ADMISSIONS OF APPELLATE COUNSEL, WHICH SUBSTANTIALLY UNDERMINED THE CONFIDENCE IN THIS TRIAL. IN CROSS-EXAMINING THE DEFENDANT'S PASTOR, THE PROSECUTOR ASKED FOR AN AGREEMENT WHETHER OR NOT THE BIBLICAL REFERENCE TO THE WAGES OF SIN IS DEATH, IS SOMETHING THAT THAT PASTOR COULD AGREE TO, AND SHE SAID YES. WHEN CROSS-EXAMINING MR. SHERE, IN THE PENALTY-PHASE, THE PROSECUTOR, AGAIN, MADE A REFERENCE TO THE BIBLE'S DIRECTIONS THAT A MAN WHO LIES IN WAIT AND THEREAFTER KILLS, DESERVES THE DEATH PENALTY. LATER, WHEN CROSS-EXAMINING --

I AS I UNDERSTAND IT, THESE WERE -- AS I UNDERSTAND IT, THESE WERE UNOBJECTED TO.

JUDGE, THERE WERE, ACTUALLY, A COMBINATION, IN THE PENALTY PHASE, OF APPROXIMATELY, NOT APPROXIMATELY BUT THREE BIBLICAL REFERENCES THAT WERE OBJECTED TO. THREE NOT OBJECTED TO, AND TWO SUSTAINED. THE VERY FIRST, FOR EXAMPLE, THERE WERE THREE REFERENCES TO THE TEN COMMANDMENTS, AND THE COMMANDMENT THAT THOU SHALT NOT KILL. THE VERY FIRST TIME THAT THE PROSECUTOR ASKED A WITNESS WAS OF THE DEFENDANT'S SISTER, AND THAT WAS SUSTAINED, AND THAT IS WHY I SAY THAT THESE WERE REPEATED, DELIBERATE, NOT ISOLATED REFERENCES TO BIBLICAL AUTHORITY.

WEREN'T THE INITIAL REFERENCES TO RELIGION AND RELIGIOUS THINGS MADE BY SHERE'S LAWYERS, HIMSELF. IN OTHER WORDS HE BROUGHT THAT UP WITH MR. SHERE AND HE BROUGHT THAT UP WITH THESE OTHER WITNESSES. ISN'T THAT CORRECT? ABOUT --

YOUR HONOR, I WOULD SUGGEST THAT THE CORRECT WAY TO LOOK AT IT IS THAT THESE BIBLICAL REFERENCES WERE NOT INVITED, BECAUSE OF THE FACT THAT THE DEFENDANT TALKED ABOUT HIS RELIGION BELIEFS OR HIS PASTOR SPOKE, BECAUSE, WHEN THE PROSECUTOR QUOTED FROM THE BIBLE OR MADE ALLEGATIONS OR ALUTIONS TO THE BIBLE, HE WAS ATTEMPTING TO SUBSTITUTE THE BIBLICAL COMMANDS THAT DEATH IS THE ONLY PENALTY FOR A MURDER.

IT IS CORRECT, IS IT NOT, THAT FIRST OF ALL THE DEFENDANT PUT ON TESTIMONY ABOUT HIS RELIGIOUS BELIEFS AND HIS CONVERSION TO RELIGION.

THAT'S CORRECT, YOUR HONOR.

THIS WAS IN AN ATTEMPT TO MITIGATE. IS THAT RIGHT?

THAT'S CORRECT, AND ESSENTIALLY IT WOULD GO TO WHAT THE TRIAL COURT RECOGNIZED WAS AN ATTEMPT AT ELICITING EVIDENCE THAT THE DEFENDANT WAS A GOOD CANDIDATE FOR REHABILITATION, UNDER THE OLD SENTENCING LAW OF 25 AND THEN PAROLE.

YOU WOULD AGREE, I ASSUME, THAT SOME CROSS-EXAMINATION, THEN, OF WITNESSES THAT HAVE TALKED ABOUT THE DEFENDANT'S CONVERSION TO RELIGION AND HIS ATTENTION AND ATTENTIVE NECESSARY TO THAT, THAT SOME CROSS-EXAMINATION OF THAT TOPIC COULD BE APPROPRIATE?

SOME WOULD, BUT AS THIS COURT POINTED ON OUT IN THE PHAROAH CASE, IT IS I AM PROP -- POINTED OUT IN THE FARROW CASE, IT IS IMPROPER FOR THE IT TO BE APPOINTED OUT TO THE JURY BY DIRECT REFERENCE, TO THOSE PARTS OF THE BIBLE THAT REQUIRE DEATH AS THE ONLY SENTENCE. THE DEFENDANT WAS ASKED, WHEN HE WAS TAKING THE STAND, AGAIN, WHETHER HE AGREED WITH THE CONCEPT THAT A MAN WHO LIES IN WAIT AND PREMEDITATES, DESERVES DEATH AS THE ONLY PENALTY, AND THAT IS THE OUTRAGE --

WOULD YOU AGREE, ALSO, THAT MOVIES THE QUESTIONS OR REMARKS, HERE, THAT WE ARE TALKING ABOUT, WERE NOT OBJECTED TO?

ACTUALLY I -- MY COUNT WAS THREE NOT OBJECTED TO. THREE WHERE THERE WERE OBJECTIONS THAT WERE SUSTAINED OR, EXCUSE ME, TWO OBJECTIONS WERE SUSTAINED, AGAIN, THE VERY FIRST REFERENCE TO ANY OF THE BIBLE WAS THE TEN COMMANDMENTS REFERENCE, AND THEN THERE WERE THREE THAT WERE OBJECTED TO, SO THERE IS A COMBINATION OF THINGS THAT THIS APPELLATE COUNSEL SHOULD HAVE PICKED UP, BECAUSE, AGAIN, THESE WERE NOT ISOLATED BIBLICAL REFERENCES OR ATTEMPTS OR ONE OVERSIGHT IN DESCRIBING DEATH AS THE ONLY PENALTY THAT THIS JURY COULD DO. AGAIN, IT --

IN ORDER TO GET RELIEF ON THIS CLAIM, YOU WOULD HAVE TO SHOW THAT, IF IT WERE RAISED, THAT WE WOULD HAVE REVERSED ON THAT BASIS. CORRECT? THAT WOULD BE ONE?

CORRECT.

AND, TWO, THAT NOT RISING IT -- RAISING IT WAS BELOW THE MINIMUM STANDARDS OF EFFECTIVE APPELLATE COUNSEL. NOW, I AM, ALWAYS, INTERESTED, AS FAR AS HOW DO WE TEST THAT FIRST ONE? BECAUSE WE DO TELL LAWYERS ON APPEAL THAT YOU SHOULDN'T RAISE ABSOLUTELY EVERYTHING AND THEY MAKE DECISIONS. HOW DO YOU KNOW THAT THIS WASN'T A STRATEGY DECISION THAT THIS LAWYER MADE, TO GO WITH HIS BEST POINTS AND NOT ARGUE EVERY POINT?

WELL, THE CASES WE HAVE CITED, INCLUDING FARROW IN OUR BRIEF, SHOW THAT IT IS REVERSIBLE ERROR, WHERE THE PROSECUTOR'S MISCONDUCT OR, EXCUSE ME, STATEMENTS, CONSTITUTE MISCONDUCT.

WERE THOSE IN RELATIONSHIP TO ARGUE UNITE THAT WERE MADE AFTER OR QUESTIONING AFTER THE DEFENDANT HAD, IN FACT, RAISED THE ISSUE OF RELIGION?

WELL, AGAIN, IN SEQUENCE, THE DEFENDANT'S ATTORNEY CALLED HIS SISTER, AND SHE DESCRIBED HIS --

I AM TALKING ABOUT THE PRIOR CASES THAT YOU ARE TALKING B.

I AM SORRY.

WERE THOSE IN RELATIONSHIP -- WAS THE PROSECUTOR'S STATEMENTS OR QUESTIONING DONE AFTER THE DEFENDANT HAD RAISED THE RELIGIOUS ISSUE, OR WERE THOSE OR THE CASES YOU ARE TALKING ABOUT, THE ONES WHERE THE PROSECUTOR MADE IT A PART OF HIS CLOSING TO THE JURY?

A GOOD NUMBER OF THE PRECEDENT DEALS SOLELY WITH THE CLOSING ARGUMENT, BUT NEVERTHELESS, GOING ALL OF THE WAY BACK TO DARDEN, WHEN THE COURT DESCRIBED PROSECUTOR MISCONDUCT, FOR EXAMPLE, THERE IS ONE CASE WHERE THE PROSECUTOR REFERRED TO THE DEFENDANT AS AN ANIMAL. ESSENTIALLY, THAT CAN BE A PER SE REVERSIBLE ERROR RULE, AND BECAUSE OF THE PATTERN, NOT THE ISOLATED REFERENCE TO THE BIBLE BUT THE PATTERN THAT THIS PROSECUTOR WAS DOING, FOR EXAMPLE --

BUT DON'T YOU HAVE REPEATED QUESTIONING OF WITNESSES ON THE SAME TOPIC? WOULDN'T YOU AGREE THAT THERE HAS TO BE A DIFFERENT STANDARD FROM THE PROSECUTOR OUT OF THE BLUE INJECTING RELIGION, SAY, IN A CLOSING ARGUMENT, AS OPPOSED TO A PROSECUTOR REACTING TO THE INJECTION OF RELIGION INTO THE PROCEEDINGS BY THE DEFENDANT?

WELL, THE WAY I WOULD SAY, YES, THERE -- IN ALL THESE CASES, MISCONDUCT HAS TO CROSS SOME LINE, TO BECOME MISCONDUCT, BUT, AGAIN, I AM ARGUING THAT THE PROSECUTOR'S REFERENCES TO THE DEATH PENALTY BEING REQUIRED BY THESE BIBLICAL SOURCES WAS NOT INVITED AND IS DISTINGUISHED FROM THE DEFENSE ATTEMPT TO SHOW THAT THERE WERE SOME MITIGATION EFFORTS, BECAUSE OF MR. SHERE'S INVOLVEMENT WITH HIS CHURCH, HIS -- THE FACT THAT A PASTOR FROM HIS CHURCH TESTIFIED, SURELY SHOULD NOT OPEN THE DOOR, FOR EXAMPLE, WHEN THE PASTOR WAS TESTIFYING, THIS PROSECUTOR EVEN ANNOUNCED THAT HE WAS A BAPTIST, WHEN HE ASKED IF SHE AGREED.

LET ME BRING YOU BACK TO, I AM TROUBLED BY THE FUNDAMENTAL QUESTION, IF YOU WILL, IN THAT HERE THE JUDGE SUSTAINED THE OBJECTIONS, AND SO, REALLY, THE ERROR THAT WOULD HAVE TO HAVE BEEN RAISED ON APPEAL WOULD HAVE BEEN THE FAILURE TO MOVE FOR A MISTRIAL OR THAT IT AMOUNTED TO FUNDAMENTAL ERROR, BUT WE HAVE, ALREADY, WHICH BRINGS ME TO MY QUANDRY ABOUT THE FACT THAT, WHERE YOU START DEALING WITH FUNDAMENTAL ERROR, ON THESE HABEASES, THEN WE HAVE, ALREADY, BEEN THROUGH A 3.850, IN WHICH THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL HAS BEEN EVALUATED AND UPHELD BY THAT ERROR, BEEN OVERRULED BY THIS COURT, AND SO BECAUSE WAVE, REALLY, DONE IS SAY IT WASN'T THAT THE TRIAL COUNSEL WAS INEFFECTIVE AND IT WAS NOT REVERSIBLE ERROR? ISN'T THAT THE STEP?

I CANNOT IMAGINE WHY THE TRIAL COUNSEL WHO HANDLED THIS APPEAL DID NOT BRING THIS TO THE COURT'S ATTENTION, WHEN ON DIRECT APPEAL, OR ON A 3.850, AS SUCH.

YOU HAVE A LIMITED AMOUNT OF TIME AND SEVERAL ISSUES TO ADDRESS.

THE SECOND ERROR AND SUBSTANTIAL ADMISSION THAT WE BELIEVED APPELLATE COUNSEL FAILED TO BRING, WAS THE DISPARATE SENTENCE THAT BRUCE DEMO RECEIVED IN COMPARISON TO MR. SHERE'S. AS SHOWN IN THE TESTIMONY AT TRIAL, THAT BRUCE DEMO WAS THE INSTIGATOR, THAT BRUCE DEM ---.

IS THAT WHAT THE TRIAL COURT FOUND, OR WAS THERE EVIDENCE THAT MR. DEMO WAS THE INSTIGATOR?

THE PRIMARY INFORMATION THAT CAME FROM THE FACTS ABOUT HOW THE MURDER HAPPENED, CAME THROUGH A DETECTIVE THAT INTERVIEWED BOTH MR. DEMO AND MR. SHERE. MR. SHERE DID NOT TESTIFY AT HIS TRIAL IN THE GUILT PHASE, AND THE DEFENSE CALLED THIS DETECTIVE, AS A DEFENSE WITNESS, ON WHO DESCRIBED MR. DEMO'S ADMISSIONS OR CON VEINGSS -- OR CONFESSIONS TO HIM.

AND HE DESCRIBED MR. DEMO AS PUTTING MOST OF THE BLAME ON MR. SHERE?

APPARENTLY THEY -- THAT WAS EXACTLY WHAT HE USED AT HIS TRIAL. BUT, AGAIN, MR. DEMO INSTIGATED THIS CRIME, BY CALLING MR. SHERE IN THE EARLY EARLY-MORNING HOURS OF CHRISTMAS IN 1987. MR. DEMO'S ADMISSIONS, AS THE COURT FOUND AND WHICH WERE CORROBORATED, IF YOU WILL, FROM RELEVANT COMPONENTS OF THE MEDICAL EXAMINER'S TESTIMONY, WAS THAT MR. DEEM-FIRED THREE OF THE FOUR FATAL SHOTS TO THE BRAIN, TWO, AND ONE TO EACH SIDE AND ONE TO THE HEART, AND THIRDLY, MR. DEMO'S PRIOR CRIMINAL RECORD WAS VERY SUBSTANTIAL, WHEREAS MR. SHERE WAS PRESENTED TO THE COURT WITH NO CONVICTIONS AT ALL. IT WAS A SUBSTANTIAL ADMISSION FOR THAT TYPE OF CULPABILITY ANALYSIS TO BE COMPLETELY OMITTED FROM THIS TRIAL COURT'S SENTENCE, FOR THE APPELLATE COUNSEL NOT TO BRING THAT TO THIS COURT'S ATTENTION ON DIRECT APPEAL. THE THIRD ISSUE IS OUR --

LET ME GO BACK.

ALL RIGHT.

AS UPING THAT WE WOULD FIND THERE TO HAVE BEEN A SERIOUS OMISSION, IS THE REMEDY, THEN, TO SEND IT BACK FOR THE TRIAL COURT TO MAKE A DETERMINATION, AS TO THE RELATIVE CULPABILITY? WHAT --

I BELIEVE THAT WOULD BE CORRECT. A RESENTENCING, IN TERMS OF THAT. WHAT HAPPENED IN THIS CASE --

IT WOULDN'T BE -- IT WOULD JUST BE A COMPLETE RESENTENCING. SIMPLY --

WELL, ESSENTIALLY IT PROBABLY COULD BE DONE IN A PARTIAL SENTENCE, AS PART OF THAT.

ARE THERE CASES WHERE, AFTER THE SENTENCE IS IMPOSED, THE CO-DEFENDANT RECEIVED A LIFE SENTENCE, AND WE HAVE DEALT WITH THOSE BY, WHAT, BY -- THAT'S CORRECT.

BY SENDING IT TO THE TRIAL COURT TO HE VALUE WAIT?

TO -- TO EVALUATE.

TO EVALUATE THOSE COMPONENTS. IN THIS CASE, THE TESTIMONY CONCLUDED NEAR THE END OF APRIL OF 1989, AND BEFORE THE SENTENCING ON MAY 17, MR. DEMO HAD HIS SEPARATE TRIAL, AND HE WAS SENTENCED AND CONVICTED, ALL ONE DAY. DEFENDANT'S LAWYER PRESENTED THAT INFORMATION IN HIS SENTENCING MEMORANDUM TO THE COURT, AND THE COURT ONLY DEALT WITH IT, IN TERMS OF DESCRIBING A DOMINATION ISSUE, AND THE COURT COMPLETELY IGNORED THE FACT THAT IT WAS CULPABILITY.

TO BE FAIR, I DON'T THINK TRIAL COUNSEL -- TRIAL COUNSEL KIND OF THREW IF IN IN ONE LITTLE SENTENCE OF MEMORANDUM.

THAT'S CORRECT. I WOULD AGREE WITH THAT CHARACTERIZATION, JUDGE, AND, AGAIN, THE KEY IS THAT ALL OF THE PRECEDENT THAT THIS COURT HAS ESTABLISHED, ABOUT CULPABILITY AND DISPARATE SENTENCES, IS THAT THE TRIAL COURT HAS TO GIVE THAT CONSIDERATION OF WHETHER THERE WAS EQUAL CULPABILITY OR NOT EQUAL CULPABILITY.

AND THAT HAS TO BE BASED ON WHAT ACTUALLY IS IN THIS RECORD? WE KNOW THAT MR. DEMO, ACTUALLY, WAS CONVICTED OF SECOND-DEGREE MURDER, WASN'T HE?

THAT'S CORRECT.

AND SO, IN DETERMINING WHAT THE RELATIVE CULPABILITY OF THESE TWO DEFENDANTS IS, YOU WOULD HAVE TO LOOK AT THIS RECORD ONLY AND MEASURE WHAT WAS PRESENTED IN THIS CASE. CORRECT?

WELL, AGAIN THAT'S CORRECT, BECAUSE DETAILS OF MR. DEMO'S TRIAL AND INDICTMENT, IN FACT, ARE NOT INSIDE THIS RECORD. THE ONLY REFERENCES TO THE JUDGE'S NOTION OR EXPLANATION THAT MR. DEMO USED A DOMINATION ATTACK AGAINST MR. SHERE, JUST AS, AT LEAST IN PENALTY PHASE, EXCUSE ME, IN GUILT PHASE, MR. SHERE'S ATTORNEY TRIED TO SAY THAT DEMO WAS THE DOMINATE OR, BECAUSE OF THE -- BEING THE INSTIGATOR, CARRYING OUT THE FATAL SHOTS, AND THIRDLY I DIDN'T MENTION IT BEFORE, BUT MR. DEMO POINTED THE PISTOL AT MR. SHERE, IT TO FORCE MR. SHERE TO DIG THE GRAVE THAT THE VICTIM WAS PLACED IN.

DIDN'T MR. SHERE MAKE SOME STATEMENT TO A FRIEND AS TO WHAT HE DID?

MR. SHERE MADE STATEMENTS THAT WERE BROUGHT OUT TO HIS GIRLFRIEND, WHO BECAME HIS WIFE, AND THEN TO A FELLOW WORKER, ABOUT SHOOTING THE DEFENDANT.

THAT HE DID THE MURDER.

THAT'S RIGHT. AND NONE OF THE FACTS MATCHED UP WITH MR. DEMO'S ADMISSIONS TO DETECTIVE ERIC, AND SO, IN FACT, THOSE STATEMENTS INCLUDED MORE BULLET SHOTS THAN HIS GUN WAS CAPABLE OF ON OR THAT THE MEDICAL EXAMINER SAID THAT THE VICTIM INCURRED. IN OTHER WORDS, THERE WERE SIX BULLET WOUNDS IN THE VICTIM, MAINLY IN THE LOWER PORTION OF THE BODY, ON OUT OF A TOTAL OF TEN BULLET WOUNDS TO THE VICTIM. HE CONFESSED THAT TO THE FRIEND HE CLAIMS THAT HE SHOT THE VICTIM 15 TIMES, WHICH WAS NOT BASED ON RELYITY AT ALL.

YOU ALREADY IN YOUR REBUTTAL TIME. THANK YOU. MR. NONE HI.

-- MR. NUNNELLEY.

MAY IT PLEASE THE COURT. I AM KEN NUNNELLEY. I REPRESENT THE STATE OF FLORIDA IN THIS PROCEEDING. LET ME START, IF I COULD, BY RUNNING DOWN THE CHRONOLOGY THAT THIS CASE HAS TAKEN. THE MURDER IN THIS CASE OCCURRED ON CHRISTMAS DAY IN 1987. IT -- THE DIRECT APPEAL WAS AFFIRMED BY THIS COURT, IN AN OPINION SIGNED BY JUSTICE BARKETT, IN 1991. THE 3.850 PROCEEDING WAS FILED IN 18993, AND IT WAS ULTIMATE -- IN 1993, AND IT WAS ULTIMATELY DISPOSED OF IN 1997. THIS COURT, IN 1999, AFFIRMED THE DENIAL OF HABEAS, OR, RATHER, 3.850 RELIEF, AND I WOULD POINT OUT THAT PRIVATE COUNSEL DID NOT REPRESENT MR. SHERE BEFORE THIS COURT. CCR, FOR THE MIDDLE REGION, DID. AFTER THE RULING OF THIS COURT ON THE 3.850 APPEAL, MR. SHERE WAITED UNTIL SEPTEMBER OF 2000, TO FILE A HABEAS PETITION BEFORE THIS COURT AND SIMULTANEOUSLY FILED ONE BEFORE THE FEDERAL DISTRICT COURT, FOR THE MIDDLE DISTRICT OF FLORIDA. THE STATE MOVED TO DISMISS THIS PETITION AS UNTIMELY, UNDER RULE 9.140, CITING McCRAE, AND THIS COURT DENIED IT IN THIS PROCEEDING, OR THIS PROCEEDING HAS GONE FORWARD. WITH RESPECT TO THE BIBLICAL REFERENCES ARGUMENT THAT MY OPPONENT HAS ADVANCED, THERE ARE TWO COMPETING ISSUES INVOLVED IN THIS, IF YOU WOULD. THE UNOBJECTED TO COMMENTS, BY THE PROSECUTION, REPRESENT MATTERS THAT SHOULD HAVE BEEN BROUGHT BEFORE THIS COURT, IF AT ALL, RULE 3.850. THEY WERE NOT. THEY COULD HAVE BEEN. THE OBJECTED TO BIBLICAL REFERENCES REPRESENT MATTERS THAT DON'T SUPPORT AN APPEAL, BECAUSE THERE WAS NO ADVERSE RULING. TRIAL COUNSEL DID NOT ASK FOR A MISTRIAL. HE DID NOT ASK FOR A CURETIVE INSTRUCTION, SO WHAT IS APPELLATE DEFENSE COUNSEL TO DO? HE HAS NOTHING TO WORK WITH. HE CAN'T BRING AN APPEAL BEFORE THIS COURT OR BRING AN ISSUE BEFORE THIS COURT ON APPEAL, WHEN HE HAS NO ADVERSE RULING.

OPPOSING COUNSEL SAID THERE WERE THREE THAT WERE ACTUALLY OBJECTED TO AND ONLY TWO OF WHICH WERE SUSTAINED, SO THAT WOULD, STILL, LEAVE ONE THAT -- WOULDN'T THERE? THAT PROPERLY PRESENTED HERE?

I REVIEWED, AS BEST I COULD, MY OPPONENT'S BRIEF, DURING HIS PRESENTATION. I DO NOT KNOW WHICH ARGUMENT HE REFERS TO, WHEN HE SAYS THE OBJECTION WAS OVERRULED. I AM NOT SURE WHAT -- WELL, LET ME BACK UP. WHAT I THINK HE IS TALKING ABOUT IS, REALLY, THE -- TRULY WHAT I THINK HE IS TALKING ABOUT, JUSTICE QUINCE, AND I AM NOT REALLY SURE, BUT WHAT I BELIEVE HE WAS REFERRING TO, WHEN IT WAS PUT INTO CROSS-EXAMINATION, MR. SHERE'S PASTOR REFERENCE, WHATEVER HER TITLE WAS --

HOW ABOUT THE ONE THAT THE COLLOQUY WITH THE SISTER? WASN'T THE OBJECTION OVERRULED ON THAT PARTICULAR ONE?

I AM NOT SURE, YOUR HONOR. LET ME LOOK AT THE BRIEF RIGHT QUICKLY, IF I COULD. BUT I BELIEVE WHAT HE IS TALKING ABOUT, IF I AM NOT MISTAKEN, NEW YORK CITY YOUR HONOR, THE QUESTION PUT TO THE SISTER -- NO, YOUR HONOR, THE QUESTION PUT TO THE SISTER, IN THE BRIEF, THE OBJECTION WAS SUSTAINED ON PAGE 369 OF THE BRIEF. IT WAS WITH RESPECT TO THE PASTOR AND THE DEATH PENALTY T GOES TO TEST THE BIAS OF THE WITNESS. THAT IS NOT AN UNCOMMON QUESTION TO BE PUT IN CROSS-EXAMINATION, AND, IN FACT, IF THAT IS WHAT HE IS TALKING ABOUT, AND FROM MY REVIEW OF THE BRIEF, IF THAT IS ALL THERE IS, THAT IS NOT IMPROPER, SO WHAT WE ARE LEFT WITH, AT MOST, ARE SUSTAINED OBJECTIONS OR UNOBJECTED TO QUESTIONS. IT IS NOT BELOW AN OBJECTIVE STANDARD OF REASONABLENESS FOR APPELLATE COUNSEL WHO, BY THE WAY, PRESSED 11 ISSUES ON DIRECT APPEAL BEFORE THIS COURT, TO DO WHAT APPELLATE LAWYERS DO AND ALLOW TO THE WEAKER ISSUES AND PRESS THE CLAIMS ON APPEAL THAT PRESENT THE GREATEST POSSIBILITY OF SUCCESS. I WOULD, ALSO, POINT OUT THAT THE FARRELL CASE, UPON WHICH MY OPPONENT RELIES HEAVILY, IS FOUR YEARS AFTER THIS APPEAL WAS OVER BEFORE THIS COURT. WITH RESPECT TO, WELL, ABOUT ALL I, REALLY, CARE -- REALLY BELIEVE THIS DESERVES FURTHER DISCUSSION WITH RESPECT TO IS THIS, THIS IS CROSS-EXAMINATION. THIS IS NOT CLOSING ARGUMENT. AND, IF THE STATE IS NOT ALLOWED TO FOLLOW WHERE THE DEFENDANT HAS LED, WHICH IS WHAT THEY DID IN THIS CASE, THE STATE IS DEPRIVED OF A CHANCE TO PRESENT THE TRUTH TO THIS PENALTY-PHASE JURY.

WELL, WHAT ABOUT WHEN THE STATE GOES BEYOND? THAT IS IT IS ONE THING TO SAY HE HAS NOW AMENDED HIS LIFE AND HE HAS JOINED THE CHURCH, AND I AM THE MINISTER, AND I HAVE MET WITH HIM 18 TIMES, AND I AM CONVINCED THAT HE HAS SEEN THE ERROR OF HIS WAY, AND TO HAVE THAT AND CROSS-EXAMINATION THAT ABOUT THAT, WELL, YOU KNOW, WHAT WAS HIS BACKGROUND BEFORE THAT OR WHATEVER, IT IS ANOTHER THING, NOW, TO START QUOTING BIBLICAL PHRASES ABOUT THAT, IF YOU COMMIT SIN, THE WAGES OF SIN ARE DEATH, OR THE MEANING OF THE QUESTIONS THAT WERE -- OR MANY OF THE QUESTIONS THAT WERE ASKED, BY THE PROSECUTOR HERE, THAT IMPROVED APPLIED, UNDER ANY -- THAT IMPLIED, UNDER ANY RELIGIOUS VIEW, HERE, THAT HE DESERVES DEATH, AND SO THERE IS A LITTLE DIFFERENCE, IS THERE NOT, BETWEEN THE APPROPRIATENESS OF SOME OF THE QUESTIONS THAT WERE ASKED HERE AND WHAT WAS ACTUALLY ASKED BY THE PROSECUTOR? OR ARE YOU SAYING THAT IT IS ALL THE SAME?

IN THIS CONTEXT, IN THIS CASE, WHICH IS THE ONLY THING I AM INTERESTED IN RIGHT NOW, THERE IS NO ERROR, BECAUSE THIS CROSS-EXAMINATION WENT WHERE THE DEFENDANT LED, AND WITH RESPECT TO THE WAGES OF SIN IS DEATH QUOTATION, THAT YOU REFERRED TO, JUSTICE ANSTEAD, IN THE CONTEXT, I AM NOT, AND I HAVE TRIED TO FIGURE THIS OUT, FROM READING THE CONTEXT OF THE PROCEEDING, I DON'T KNOW THAT THE PROSECUTOR WAS REFERRING TO A SENTENCE OF DEATH. I THINK HE WAS -- I THINK THAT WAS, PROBABLY, A LITTLE BIT MORE THEOLOGICAL THAN IT WAS THAT THE BIBLE DEMANDS THE --

WHAT I AM TRYING TO SAY IS THAT IT AN IS A FAR DIFFERENT THING ABOUT -- IT IS A FAR DIFFERENT THING TO QUESTION WHETHER HE IS CHANGED IN LIFE, WITH REGARD TO THE CHURCH OR WHATEVER, THEN TO QUOTE A PRESENT, IN TERMS OF THE DEFENDANT, WELL, ISN'T IT A PRESENT OF YOUR RELIGION THAT YOU ARE GOING TO HAVE TO PAY, NOW, FOR WHAT YOU HAVE DONE AND, IN FACT, PAY WITH YOUR LIFE, AND THAT IS THE CONSEQUENCES, THOSE ARE TWO DIFFERENT THINGS. ARE THEY NOT?

I AM NOT SURE THAT THEY ARE.

WHY IS IT, THEN, THAT WE HAVE, LATER, HELD THAT PROSECUTORS COMMIT GRIEVOUS ERROR, IF THEY START QUOTING THINGS LIKE THAT IN THEIR CLOSING ARGUMENT? WHY SHOULD IT BE ANY DIFFERENT, IF THEY QUOTE IT IN A CROSS-EXAMINATION, WHEN THAT HASN'T BEEN THE SUBJECT OF THE DIRECTION? WE HAVE CONDEMNED, ROUNDLY, QUOTATIONS LIKE THAT, REGARDLESS OF WHETHER THEY ARE ACCURATE, YOU KNOW, FROM PARTICULAR RELIGIOUS TENETS, THAT SAY THINGS LIKE THAT AND THAT PROSECUTORS HAVE USED?

IF THIS WAS A CLOSING ARGUMENT CLAIM, I WOULD BE MUCH MORE CONCERNED ABOUT IT THAN I AM, BUT WHAT WE HAVE HERE IS A DEFENDANT WHO PUT ON HIS, A PENALTY ON-PHASE DEFENSE THAT, IN THE WORZ OF THIS COURT -- IN THE WORDS OF THIS COURT, THAT HE WAS A KIND, GENTLE, GOD-FARING MAN, AND IF HE IS GOING TO PUT ON THAT -- GOD-FEARING MAN, AND IF HE IS GOING TO PUT ON THAT SORT OF TESTIMONY THAT, HE IS A KIND, GENTLE AND GOD-FEARING MAN, THEN IT IS ENTIRELY APPROPRIATE FOR THE PROSECUTION, DURING CROSS-EXAMINATION, TO INQUIRE INTO THE FUNDAMENTAL BASIS OF THOSE BELIEFS. I DON'T SEE HOW THEY -- IT WOULD BE VERY DIFFICULT, IF NOT IMPOSSIBLE --

IN OTHER WORDS, IF HE ACCEPTS THAT RELIGION, THEN HE IS GOING TO HAVE TO BUY INTO THE FACT THAT DEATH OR THE WAGES -- DEATH ARE THE WAGES FOR IS SIN, AND HE IS GOING TO HAVE TO SAY, WELL, YES, I AGREE WITH THAT, AND THEREFORE PUT ME TO DEATH.

I AM NOT SURE -- WE ARE GETTING INTO A THEOLOGICAL DISCUSSION, OURSELVES, NOW.

THAT WAS THE TEN ON OR OF A NUMBER OF THE QUESTIONS THAT WERE ASKED, UPON CROSS-EXAMINATION BY THE PROSECUTOR, WAS IT NOT?

THE ONLY ONE THAT ON -- THE ONLY ONE THAT I THINK THAT I READ IN THAT WAY, JUSTICE ANSTEAD, WAS THE ONE ABOUT THE MAN LYING IN WAIT AND PREMEDITATION, AND THAT QUOTE, I CAN'T QUOTE IT VERBATIM. THERE WAS ONE OF THOSE THAT WAS ASKED OF MR. SHERE, AND I BELIEVE THERE WAS AN OBJECTION TO THAT, THAT WAS SUSTAINED.

YOU MEAN THERE WASN'T ANY QUESTIONS ASKED OF THE MINISTER, ALONG THAT SAME LINE?

THE MINISTER WAS ASKED -- LET ME FIND IT, BACK, AGAIN, IN THE BRIEF.

WELL, I DON'T NEED --

I DON'T NEED TO READ IT, EITHER, YOUR HONOR.

YOU DEALT WITH THAT, BUT THERE IS -- YOU WOULDN'T AGREE THERE IS ANY DISTINCTION, THEN, INSOFAR AS WHAT MIGHT BE VALID CROSS-EXAMINATION TO TEST WHETHER OR NOT HE, REALLY, HAS CONVERTED HIS LIFE OR WHATEVER, AND THEN GOING TO THIS OTHER PROPOSITION, ABOUT THE TENETS OF THAT PARTICULAR RELIGION, REALLY, BEING HELD AGAINST THE DEFENDANT.

I DON'T THINK WE ARE HOLDING THE TENETS OF A RELIGION AGAINST THE DEFENDANT, YOUR HONOR. I THINK WHAT WE ARE DOING IS IN QUIRING INTO WHETHER -- INTO THE SINCE -- INQUIRING INTO WHETHER -- INTO THE SINCERITY OF HIS BELIEVES, AND THAT IS WHAT WE WOULD BE ENTITLED TO DO AND HAVE TO DO, IF THAT WAS THE THEORY THAT THE DEFENSE PUT ON IN MITIGATION, BUT, AGAIN, THE FUNDAMENTAL PROBLEM WITH THIS HAIM A CLAIM IS HE -- WITH THIS CLAIM IS HE CAN'T SHOW DEFICIENT PERFORMANCE ON THE PART OF APPELLATE COUNSEL NOR CAN HE SHOW PREJUDICE. HE HAS NOT COME BEFORE THIS COURT, TODAY, WITH ANYTHING THAT WOULD COMPEL A REVERSAL. WITH RESPECT TO THE PROPORTIONALITY SENTENCE ISSUE, MR. DEMO WAS CHARGED WITH FIRST-DEGREE MURDER AND TRIED SEPARATELY FROM MR. SHERE. MR. DEMO WAS CONVICTED BY A DULY -- ELECTED JURY OF SECOND-DEGREE MURDER. AND AS A MATTER OF LAW, BECAUSE HE WAS CONVICTED OF AN OFFENSE LESS THAN FIRST-DEGREE MURDER, HE IS LESS CULPABLE. MR. DEMO, UNDER THIS COURT'S LARZELERE DECISION AND, I BELIEVE, ALSO THE KITE DECISION, IS LEFT CULPABLE AS A MATTER OF LAW. IT DOES NOT MAKE MR. SHERE'S DEATH SENTENCE DISPROPORTIONATE.

HASN'T THIS COURT, THOUGH, REPEATEDLY SAID THAT THE SENTENCE OR THE PUNISHMENT IMPOSEED ON A CO-DEFENDANT IS SOMETHING THAT SHOULD BE SERIOUSLY CONSIDERED BY THE SENTENCING COURT AND BY THIS COURT, ON REVIEW?

AND MR. DEEM-'S SENTENCE WAS KNOWN TO THE SENTENCING COURT.

PARDON?

MR. DEMO'S SENTENCE WAS KNOWN TO THE SENTENCING COURT.

BUT THE COURT DID TREAT IT IN ITS SENTENCING ANALYSIS, CORRECT?

NO. MR. DEMO DID NOT.

NO. MR. DEMO DID NOT TREAT THAT ISSUE, IN THE SENTENCING ORDER?

THAT IS BECAUSE MR. DEMO'S CONVICTION OF SECOND-DEGREE MURDER MEANS THAT, BY DEFINITION, BY LAW, HE IS LESS, THE LESS CULPABLE OF THESE TWO DEFENDANTS. IT IS THE SAME THING AS THE LARZELERE CASE, WHERE THE COMMITTEE DEFENDANT'S SON, WHO WAS TRIED SEPARATELY FROM DEFENDANT LARZELERE, WAS ACQUITTED. AND THIS COURT EXPRESSLY HELD THAT, BECAUSE OF THAT RESULT, THAT SENTENCE -- THAT RESULT DOES NOT PLAY INTO THE PROPORTIONALITY ANALYSIS FOR VIRGINIA LARZELERE.

MAYBE I AM HAVING TROUBLE UNDERSTANDING THIS. HOW DOES ANOTHER JURY'S DETERMINATION IT WAS SECOND-DEGREE MURDER, WHICH THIS ISN'T, IN THIS CASE, IT SEEMS TO BE A KEY CASE, BUT AREN'T WE CONCERNED WITH WHO IS -- WE DON'T KNOW WHO THE SHOOTER IS, FOR SURE, DO WE? I MEAN, THERE HAS NEVER BEEN AN EVALUATION AS TO WHETHER DEMO WAS THE SHOOTER, VERSUS SHERE, AND EVEN IN THE DIRECT AFTER IN THE DIRECT APPEAL, IT SAID, WITHOUT WARNING, EITHER SHERE OR DEMO OR BOTH, WITHOUT WARNING, FIRED A DIRECT SUCCESSION OF RAPID GUNSHOTS. ARE YOU SAYING THAT, BECAUSE SHERE WAS FOUND GUILTY OF SECOND-DEGREE MURDER, THAT THAT CAN'T BE CONSIDERED IN A PROPORTIONALITY ANALYSIS, AS TO WHO WAS THE SHOOTER AND WHO WAS THE INSTIGATOR OF THIS?

THAT'S CORRECT, BECAUSE IT HAS BEEN DETERMINED, BY A JURY, AND AFFIRMED ON APPEAL, THAT THESE DEFENDANTS ARE NOT EQUALLY CULPABLE. THIS COURT HELD, ON DIRECT APPEAL, THAT MR. SHERE'S DEATH SENTENCE WAS PROPORTIONATE.

BUT I THOUGHT THE POINT WAS THAT WHAT THIS COURT DIDN'T DETERMINE IS WHETHER, BECAUSE OF DEMO'S SECOND-DEGREE OR HIS -- BECAUSE HE DIDN'T GET A LIFE -- DEATH SENTENCE, AND YOU ARE SAYING HE COULDN'T HAVE GOT ONE, BECAUSE HE WAS CONVICTED OF SECOND-DEGREE MURDER, BUT THAT THAT WASN'T CONSIDERED, AS AN ISSUE IN APPEAL, AND WHAT YOU ARE, NOW, TELLING US, IS THAT THAT WOULD BE MERITLESS?

THAT IS WHAT I AM TELLING YOU IS THAT THAT WOULD BE MERITLESS. IF IT HAD BEEN RAISED ON DIRECT APPEAL, AND LIKE I SAID BEFORE, THE PROPORTIONALITY ISSUE WAS DETERMINED ON APPEAL TO THIS COURT, BUT IF APPELLATE COUNSEL HAD SOUGHT TO ARGUE THAT DEMO'S CONVICTION OF A LESSER DEGREE OF MURDER, SOMEHOW, PLAYS ABOUT THE PRIORITY OF MR. SHERE'S SENTENCE, THE STATE'S RESPONSE WOULD HAVE BEEN THE SAME AS MINE TODAY, THAT IT DOES NOT PLAY INTO THE CALCULUS THAT APPLIES TO MR. SHERE.

SO YOU ARE SAYING THAT WE CAN ONLY LOOK AT THIS RECORD, TO -- NO. THAT WE CAN LOOK AT THE OTHER RECORD THAT IS NOT BEFORE US, TO DETERMINE THE RELATIVE CULPABILITY OF THE CO-DEFENDANT?

NO, MA'AM. WHAT I AM SAYING IS THE RELATIVE CULPABILITY, THE CULPABILITY OF MR. DEMO HAS BEEN DETERMINED.

WELL, THERE COULD BE A NUMBER OF REASONS WHY HE GOT A SECOND-DEGREE VERDICT, COULDN'T THERE?

I AM NOT PREPARED TO GO BEHIND THE JURY, AND I DON'T THINK IT WOULD BE APPROPRIATE TO TRY TO GO BEHIND THE JURY. I DON'T KNOW WHY THEY CAME BACK SECOND-DEGREE MURDER ON HIM. I DON'T KNOW. I HAVEN'T READ HIS RECORD.

BUT THAT DOESN'T SHOW HE IS NOT THE HOOTER. -- THE SHOOTER.

IT DOESN'T SHOW THAT HE WAS, BUT WHAT THE RECORD BEFORE THIS COURT SHOWS AND WHAT THIS COURT HELD, ON DIRECT APPEAL, WAS THAT MR. SHERE WAS, AND I MIGHT ADD WHAT THE SENTENCING JUDGE FOUND, WAS THAT MR. SHERE WAS THE MOVING FORCE BEHIND THIS. I BELIEVE THAT IS WHAT THE SENTENCING ORDER FINDS. I AM NOT ENTIRELY CLEAR ABOUT. THAT.

BUT THAT IS, I THINK, THE PROBLEM, AND I THINK THAT IS WHAT WE ARE, REALLY, HERE IN FRONT OF, IS THAT THE JUDGE DIDN'T MAKE THAT DETERMINATION. THE ONLY QUESTION WAS WHETHER HE WAS, AS A MITIGATOR, WAS UNDER EXTREME DURESS OR UNDER THE SUBSTANTIAL DOMINATION OF BRUCE DEMO, AND HE SAID THERE IS NO EVIDENCE OF DOMINATION. THERE IS NO EVALUATION OF RELATIVE CULPABILITY.

AND THE ABSENCE OF A -- OF SUCH A SPECIFIC EVALUATION OR RELATIVE CULPABILITY IS NOT THE ISSUE THAT HAS BEEN BROUGHT IN THIS HABEAS PETITION, AS I UNDERSTAND IT. THE ISSUE THAT I UNDERSTAND WE ARE HERE ON IS WHETHER OR NOT APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT, SOMEHOW, GETTING --

IT REVERSED ON THE BASIS THAT THE JUDGE SHOULD HAVE CONSIDERED RELATIVE CULPABILITY.

I THOUGHT THE ISSUE WAS THAT HE DIDN'T, SOMEHOW, PRESS THAT DEEM-WAS -- THAT DEMO WAS MORE -- THAT DEMO WAS MORE CULPABLE, IN THE SENTENCING ORDER. IT IS TWO DIFFERENT ISSUES, AS FAR AS I UNDERSTAND IT, BUT THE BOTTOM LINE IS APPELLATE COUNSEL RAISED ELEVEN DIFFERENT CLAIMS ON DIRECT APPEAL, AND THAT IS WHAT HE HAS TO DO. IT IS JONES VERSUS BARNES AND A LONG LINE OF CASES. THIS IS NOT THE SORT OF CLAIM THAT WOULD HAVE BEEN A WINNER ON DIRECT APPEAL. HE HAS NOT SHOWN THAT IT WAS INSUFFICIENT PERFORMANCE, UNDER THE LAW AT THAT TIME, FOR APPELLATE COUNSEL NOT TO PRESS THIS CLAIM ON DIRECT APPEAL, NOR HAS HE SHOWN THAT THIS COURT WOULD HAVE REVERSED, EVEN IF HE HAD DONE THAT, AND FURTHERMORE, DEMO'S ISSUE IS NOT BEFORE THIS COURT AND IS NOT THE STATE'S RESPONSIBILITY TO BRING IT HERE! I AM, ALSO, HEARING, I BELIEVE, WITHIN THIS SAME CLAIM, SOME TONES OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, AGAIN, BECAUSE JUSTICE PARIENTE, YOU MENTIONED THAT, IN ONE OF YOUR QUESTIONS, I BELIEVE, WHERE IT WAS KIND OF, I BELIEVE THE PHRASE YOU USED WAS IT WAS THROWN INTO THE PRESENTENCING MEMORANDUM, THAT IS A TRIAL COUNSEL CLAIM. THAT IS NOT AN APPELLATE COUNSEL CLAIM, AND IF THAT IS WHERE THIS CLAIM IS BEING TAKEN, THAT IS A CLAIM THAT IS NOT BEFORE THIS COURT, BECAUSE WE HAVE, ALREADY, DECIDED THE TRIAL COUNSEL CLAIM WAS INEFFECTIVENESS ADVERSELY TO MR. SHERE. AND UNLESS THE COURT HAS ANY FURTHER QUESTIONS, I WOULD ASK THE COURT TO DENY THE HABEAS PETITION IN ALL RESPECTS.

REBUTTAL?

THANK YOU, YOUR HONOR. JUDGE, WITH ALL DUE RESPECT TO THE STATE, HIS REFERENCE TO OUR OFFICE'S HANDLING THE DIRECTOR THE APPEAL OF THE 3.850 DENIAL WAS CORRECT, BUT OUR OFFICE DID NOT FILE THE THE -- THE LAST AMEND 3.850, NOR DID OUR OFFICE HANDLE THE EVIDENTIARY HEARING, ITSELF. IT WAS PRIVATE COUNSEL. NOW, GOING TO THE CRUX OF THE BULB LICKAL REFERENCES, IT SEEMS TO ME THAT THE -- OF THE BIBLICAL REFERENCES, IT SEEMS TO ME THAT THE STATE IS OFF THE MARK, IN TERMS OF ITS CHARACTERIZATION OF, SOMEHOW, THIS BEING A INVITED RESPONSE, JUST BECAUSE THE DEFENDANT'S CONNECTION WITH THIS METHODIST CHURCH OR WHAT HAVE YOU WAS BROUGHT IN THROUGH THREE OR SO WITNESSES. THE DEFENDANT'S COUNSEL NEVER ELICITED A QUOTEATION OR A REFERENCE FROM THE BIBLE THAT DEATH WAS THE ONLY PUNISHMENT FOR THIS MURDER OR ANY OTHER MURDER.

BUT THAT REFERENCE, THE ON ONE THAT THE WAGES OF SIN IS DEATH, THAT WAS DURING THE CROSS-EXAMINATION OF THE MINISTER. CORRECT?

THAT'S CORRECT.

AND THAT IS ONE OF THE UNOBJECTED TO COMMENTS TO THE QUESTION.

NO. ACTUALLY, JUSTICE QUINCE, IF I MAY CHECK MY NOTES, THE OBJECTION IS OVERRULED, OR, I AM SORRY. YOU ARE CORRECT. THAT WAS ONE OF THE UNOBJECTED TO. BUT YOU EARLIER --

WHAT ARE WE SUPPOSED TO DO WITH THAT? THIS IS AN UNOBJECTED TO --

IT IS THE PATTERN OF AT LEAST EIGHT OR, EXCUSE ME, SEVEN BIBLICAL REFENCES TO THE TEN COMMANDMENTS, TO WHETHER OR NOT THE DEFENDANT GAVE THE VICTIM A CHRISTIAN BURIAL, OR DEATH BEING THE ONLY SENTENCE, THAT GOES AFTER THE FIRST SUSTAINING OF THE REFERENCE TO THE DEFENDANT'S SISTER ABOUT THE TEN COMMANDMENTS, SO IT IS THE COMBINATION OF THE FUNDAMENTAL ERROR, FOR THE "NO OBJECTION" CASES OR SITUATIONS, WHERE THE OBJECTIONS WERE OVERRULED AND SHOULD HAVE BEEN -- CAUGHT THE APPELLATE COUNSEL'S EYES, WHERE THE PASTOR HAD TO AGREE THAT SHE, HERSELF, BELIEVED IN THE DEATH PENALTY THAT, SHE AGREED THAT THE BIBLE TEACHES PERSONAL RESPONSIBILITY, AND WHERE MR. SHERE WAS ASKED, BY THE STATE, IF HE HAD GIVEN THE DEFENDANT A CHRISTIAN BURIAL AND, NO DOUBT, IN THE HORRIFIC FACT THAT THIS HAPPENED ON A CHRISTMAS DAY, SO, AGAIN, IT IS THAT TYPE OF THING, THE TOTALITY OF THE CUMULATIVE OR THE PATTERN, NOT AN ISOLATED REFERENCE TO THE BIBLE OR ITS PROJECTIONS OF DEATH AS THE ONLY PENALTY, THAT IS WHY IT IS NOT INVITED, AND THAT IS WHY IT IS BEYOND THE SCOPE OF WHAT LIMITED INFORMATION ABOUT THE WIT NESSES' TESTIFYING ABOUT THE DEFENDANT'S CONVERSION AS A SO-CALLED BORN-AGAIN CHRISTIAN OR HIS CONNECTION WITH THE CHURCH, IN TERMS OF CONSTRUCTION PROJECTS OR WHAT HAVE YOU.

WHAT IS YOUR SKPONS, ON THE SECOND POINT -- WHAT IS YOUR RESPONSE, ON THE SECOND POINT, THAT BECAUSE A SECOND JURY FOUND THE CO-DEFENDANT GUILTY ONLY OF SECOND-DEGREE MURDER, THAT AS A MATTER OF LAW, THAT THAT CO-DEFENDANT'S CULPABILITY IS -- CAN'T CAN'T BE COMPARED TO THIS DEFENDANT?

I WOULD SUGGEST THAT THE STATE IS COMPLETELY WRONG, WHEN IT MAKES THAT STATEMENT, BECAUSE THIS COURT HAS ALWAYS USED FACTUAL DETERMINATIONS OF CULPABILITY, IN TERMS OF THE DISPARATE SENTENCES THAT ONE CO-DEFENDANT OR COPERPETRATOR MAY OR MAY NOT HAVE HAD. THE FACT THAT MR. DEMO, IF YOU WILL, WAS LUCKY TO HAVE A DIFFERENT JURY, SHOULD NOT PREVENT A CULPABILITY ANALYSIS OF THAT TRIAL COURT OR THIS COURT, ON DIRECT APPEAL.

CAN YOU POINT TO ANY OTHER CASE -- AND A LOT OF THESE CASES, THE CO-DEFENDANT MAY BE CONVICTED OF FIRST-DEGREE MURDER YET GET A LIFE SENTENCE. CAN YOU POINT US TO ANY OTHER CASES, WHERE THE CO-DEFENDANT ACTUALLY GOT A SECOND-DEGREE MURDER CONVICTION AND THEN WE DISCUSSED THE SENTENCE RECEIVED FOR A SECOND-DEGREE MURDER CONVICTION, IN OUR DETERMINATION OF DISPARATE SENTENCE?

NONE AS OF THE TIME THAT WE SUBMITTED THE BRIEF. ALTHOUGH I THINK THERE WAS A RECENT CASE WHICH WE DID NOT REQUEST TO SUPPLEMENT WITH. BUT NEVERTHELESS, THE IDEA IS THAT A CULPABILITY ANALYSIS HAS TO BE THROUGH A FACTUAL DETERMINATION OF WHAT THE MEDICAL EVIDENCE SHOWED ABOUT CONFIRMING BRUCE DEMO'S CONFESSION OF THE THREE FATAL SHOTS, THE CONFESSION, FROM BRUCE DEMO, AND THE CONCURRENCE FROM THE CONFESSIONS THAT MR. SHERE MADE THAT, MR. DEMO WAS THE INCGATOR OF THIS --

I BELIEVE YOUR TIME IS UP, SIR. THANK YOU VERY MUCH. THANK YOU, COUNSEL.